Since 2005, Covering The Copyright and Consumer Electronics Industries, Including DRM, Digital Watermarking, Digital Fingerprinting and Related Technologies and Topics.

Friday, November 14, 2008

What Does AACS Teach Us About the DMCA?

My Google Alerts filter found a blogicle on the DMCA penned by Zach Powell, a third year law student at the University of Richmond (VA) School of Law (posted semi-anonymously, I have his permission to use his name). Written for Prof. Chris Cotropia's copyright law class blog, Powell posted a longish note regarding the AACS encryption scheme for Blu-ray discs (and previously for HD-DVD before its demise).

After providing a decent review of the brief history of AACS and the DMCA, including takedown notices under the latter, Powell concludes as follows:

It’s clear that the anti-circumvention provision of the DMCA is a failed idea and does nothing to help content providers while at the same time creating bad situations for legitimate users. It does nothing to support the underlying basis for copyright law, and in fact stifles innovation, which is the reason we’re willing to give creators a limited monopoly in the first place. In the scenarios above, only people who are unwilling to pirate discs are going to be affected. As with many schemes to prevent copy protection, it is only the legitimate users who are hurt.

When the Content Scramble System was being debated in the run-up to the first generation DVDs, the studios, the CE manufacturers, and the major computer companies declined to adopt a standard with refreshable encryption keys. As most observers predicted, CSS was broken quickly by publication of the single, weak key.

AACS was in part a response to this experience and included as Powell notes, key and device revocation capabilities and refreshable key distribution capabilities. Various AACS keys have been published and various takedown notices asserted. However, I and many others believed from the outset that AACS would go
the way of CSS because there was no way to modify the AACS system
itself.

Following a major push by the major studios, labels, related trade associations, etc., the DMCA was enacted into law in part because rightsholders realized that no technological solution by itself would solve the media piracy and misappropriation of copyrighted media assets problems. The legal strategy is and continues to be a part of the overall strategy to reduce piracy and misappropriation while increasing revenue and profits.

Where the DMCA has been misused, in my view, is the RIAA's clumsy litigation strategy against individual music downloaders. While creating the proverbial "cold chilling effect" of litigation, including potential and actual monetary damages, the RIAA's efforts have had little overall effect in reducing unauthorized downloading.

Nevertheless, applied to proprietary, confidential, and trade secret information such as encryption keys and other security and rights management components, the DMCA may have substantial value in slowing down the cat and mouse game between the studios and hackers/pirates/crackers.

Not only has AACS been compromised repeatedly, but a couple of (offshore) software vendors have cracked Blu-ray's BD+ security. BD+ is a virtual machine based security component. The programming for the VM is on the optical disc. The VM is resident in the player. It appears that there are several levels of BD+ security as well and so far only the basic capabilities are being used.

As I have noted elsewhere, it is perfectly rational for Macrovision (now the owner of the BD+ technology) and the studios to study successful attacks. As the cat and mouse game evolves, additional technical capabilities and countermeasures may be deployed. Using legal tools such as the DMCA may slow down this process and by doing so, extend the life of BD+ technologies.

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